I'm No Jimmy the Greek, But SB 1070 Likely to Be Left Toothless...

In the midst of traveling, I listened to news reports of the U.S. Supreme Court's apparent support for Arizona's immigration statute -- SB 1070. I was a bit surprised by these accounts. Though obviously no decision was rendered during oral argument, most reporters predicted the Court upholding Arizona's immigration measure. For instance, CNN reported: "Parts of Arizona's sweeping immigration law received a surprising amount of support from a short-handed Supreme Court Wednesday." Even Huff Post's Mike Sacks' story led with "Supreme Court Appears To Favor Arizona On Controversial Immigration Law." Having now reviewed the transcript of the argument, I take a slightly different take on the matter. Though I suggest no one take bets on my prediction -- for I am no Jimmy the Greek -- I believe the Court in large part will uphold the two federal courts that have struck down the Arizona law.

Byway of background, in 2010, federal district Judge Susan Bolton issued a preliminary injunction as to four provisions of SB 1070. In a 2-1 decision, the Ninth Circuit Court of Appeals upheld Judge Bolton's decision. The injunction, or in other words, the order preventing the implementation of portions of SB 1070, included the invalidation of:

- Section 2, requiring state and local officers to verify the citizenship status of people arrested, stopped or detained. Specifically, Section 2(B) provides that "for any lawful stop, detention or arrest made" by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."

- Section 3, making it a state crime for a person to be unlawfully in the United States and for failing to register with the federal government. This section requires non-citizens to carry registration papers showing that they are lawfully in the United States.

- Section 5, making it a state crime in for a person who is not lawfully in the United States to work or seek work. Specifically, Section 5(C) makes it a misdemeanor for "a person who is unlawfully present in the United States and is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."

-Section 6, authorizing state and local police to arrest without warrants when "the officer has probable cause to believe ... [t]he person to be arrested has committed any public offense that makes the person removable from the United States."

The position of the federal government, the plaintiff in the matter, is that Arizona's law is in conflict with federal immigration law. And it is the federal government's position that immigration is a matter within its exclusive authority. Therefore, any state law the conflicts with federal law is void pursuant to the Supremacy Clause of the Constitution.

The key opinion on the matter appears to be the Supreme Court's 1942 decision, Hines v. Davidowitz, where the Court held that immigration enforcement necessarily implicates "important and delicate" considerations of foreign policy and that therefore states cannot "contradict" or "complement" federal immigration efforts. Thus, the question before this Court is whether SB 1070 contradicts federal immigration efforts.

While my reading of the transcript suggests that several of the justices seemed sympathetic to Section 2 of the law, which merely mandates state authorities to confirm a detained person citizenship status after an unrelated lawful stop, especially if such inquiries do not extend the time the person is detained because of the immigration inquiry, I believe the justices may very well uphold the lower courts' invalidation of the other three provisions. While I remain troubled that Section 2 will invite racial profiling, the profiling issue was not before the Court I suspect because the federal government was aware of unfavorable law in the immigration context. If section 2 is upheld, which it very well may be if the justices vote along philosophical lines, then the racial profiling matter will have to be addressed in the political realm.

Nevertheless, If all the other three provisions at issue are struck down, which I believe they will be, this is a victory for the federal government and opponents of SB 1070. As mentioned above, the key question is whether Arizona's law conflicts with federal policy, and the Justices of the Court seemed to focus on this point. In the questioning of Arizona's Attorney, for instance, the following enlightening exchange occurred:

-JUSTICE SCALIA: And the State has no power to close its borders to people who have no right to be there?

MR. CLEMENT: Well, here -- Justice Scalia, here's my response, which is all of this discussion, at least as I've understood it, has been about 2(B), and to a lesser extent 6. Now, section 3 of the statute does provide an authority under State law to penalize somebody who has violated essentially the Federal registration requirement. So if that's -- as to that provision, there would be a State authority, even under these hypotheticals, to take action with respect to the individual.

-JUSTICE KENNEDY: I think Justice Scalia's question was the -- was the broader one, just as a theoretical matter. Can we say, or do you take the position, that a State must accept within its borders a person who is illegally present under Federal law?

MR. CLEMENT: I think my answer to that is no. I think the reason my answer is no has more to do with our defense of section 3 and other provisions than it does with respect to the inquiry and arrest authority provisions, 2(B) and 6.

In this key exchange, counsel for Arizona basically admits that the state can penalize someone even if the federal government does not want that person to be detained, arrested or deported under its policy. This exchange alone highlights how and why SB 1070's sections 3, 5 and 6 should be struck down -- because SB 1070 can and will lead to conflict with federal immigration policy. This admission thus seals the case, and even if Section 2 is upheld, the Court will likely leave SB 1070 toothless. This is likely to be the result unless of course the Court cares more about politics than precedent and logic.

The logic: earlier this year, the federal government set immigration priorities that conflict with SB 1070. Just this year the Department of Homeland Security announced that it has "prioritized the removal of people who have been convicted of crimes in the United States." In this statement concerning immigration, the feds indicated they are not focusing their resources on deporting people who are low priorities for deportation. "This includes individuals such as young people who were brought to this country as small children, and who know no other home." Yet, the drafters of SB 1070's section 3, 5 and 6 cared not about such priorities, and made it a state crime for merely being undocumented in the state, or seeking employment in the state. Thus even if the federal policy is that such individuals pose no threat, Arizona law contradicts this national policy and thus should be held invalid.